Obligation to use the Brand and Legal Consequences of Non-Use

In our country, trademarks, patent-utility models, designs and geographical indications protected by four separate Statutory Decrees (KHK) adopted in 1995 have been brought together under the Industrial Property Law No. 6769. Therefore, the adoption of the Industrial Property Law (SMK) numbered 6769, which entered into force on 10.01.2017, is similar to the fact that 1995 is seen as a milestone in the doctrine due to the acceptance of the customs union with the European Union and being a party to the World Trade Organization (WTO)/TRIPS in our country. It can be said that it should be seen as a milestone in the field. It is a very important issue that the regulations paralleling the European Union regulations regarding the use of the trademark are included in our legal system. The trademark owner, who registers the chosen trademark in the trademark registry and uses the trademark under the conditions stipulated in the Law, will be able to protect his trademark against third parties. In the Industrial Property Law, the way this use should be is explained and it is emphasized that it should be used seriously within the borders of Turkey in the class of goods or services for which the trademark is registered. In order to encourage the real use of the trademark and to prevent the trademarks from occupying an unnecessary place in the registry, the use of the trademark has been made mandatory by the law. Upon the request of the relevant persons, TÜRKPATENT may decide to cancel the trademarks that are not used by their owner within five years from the date of registration in the registry or whose use has been suspended for five years without a justifiable reason. Principles regarding the use of the trademark, Industrial Property Law No. 6769 9/1. According to the provision of the article, “A trademark that is not used seriously in Turkey by the trademark owner in terms of the goods or services for which it has been registered without a justifiable reason within five years from the date of registration or whose use has been interrupted for five years shall be decided to be cancelled”. Accordingly, within five years from the date of registration, if the trademark cannot be used seriously by the trademark owner in Turkey without a justifiable reason in terms of the goods or services for which it is registered, or if the usage is interrupted for five years, the trademark shall be cancelled. Therefore, in this sense, in order not to decide on the cancellation of the trademark, the trademark must be used seriously in Turkey by the trademark owner in accordance with its basic function in terms of the goods or services registered in the registry. Using the trademark with different elements without changing its distinctive character, using it only in the goods or packaging for export purposes, and using it with the permission of the trademark owner are also included in the SMK. It is accepted to use the trademark within the meaning of paragraphs 9/2 and 3. It has been accepted that the cases considered as using the trademark are numbered and cannot be extended, on the grounds that the SMK is not understood from the related article wording and the extension of the conditions accepted for use will not be compatible with the purpose of introducing the obligation to use the trademark. As a matter of fact, Tekinalp stated that the cases considered to be used are clearly stated in the relevant law article and it is not possible to make additions except for these numbered cases. In this article, especially, the burden of using the trademark and the legal consequences of this burden have been tried to be emphasized. In the study, legislative provisions, high court decisions, doctrine and scientific studies and international practices and regulations were used.